Lydiard-Peterson Co. v. Woodman

• Decision Date: 03 March 1913
• Docket Number: 3,738.
• Citation: 204 F. 921
• Parties: LYDIARD-PETERSON CO. v. WOODMAN. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

204 F. 921

LYDIARD-PETERSON CO. v. WOODMAN. ^[1]

No. 3,738.

United States Court of Appeals, Eighth Circuit.

March 3, 1913

Milton D. Purdy, of Minneapolis, Minn. (William A. Lancaster and David F. Simpson, both of Minneapolis, Minn., on the brief) for appellant.

Charles J. Traxler and Prentiss M. Woodman, both of Minneapolis Minn., for appellee.

Before SANBORN and HOOK, Circuit Judges, and McPHERSON, District judge.

SMITH McPHERSON, District Judge.

This is an action in equity for an injunction and damages for infringement of an alleged copyrighted map or chart of Lake Minnetonka, Minnesota. The Lydiard-Peterson Company, the defendant in the court below, pleaded a number of defenses only one of which will be considered. The lower court adjudged the Lydiard-Peterson Company guilty of infringement awarded plaintiff damages in the sum of $75 and costs including an attorney fee of $50, and perpetually enjoined the Lydiard Company from reproducing, printing, or selling the map it had been printing and selling. Thereupon this appeal was taken.

To save expense and to limit the controversy, the parties signed and filed a stipulation, to the effect that the only question for determination by this court is as to the sufficiency of the notice on complainant's alleged copyright. Prentiss M. Woodman had printed a Directory showing the ownerships of all residences and property adjacent to and near by the lake. Inside of the cover is a pocket for a map. There were 500 copies of the book and 1,000 maps printed. In some instances the book with map included sold for $3, and in other instances the map alone for $1. Woodman himself sold them, and a few were sold at book stores. On the map is the following:

'Woodman's Minnetonka Map-Directory. Copyright 1908. Drawn by J. C. Woodman.'

On another part of the map is the following:

'Published by Woodman Publishing Co., 841 Lumber Exchange Building, Minneapolis, Minn. Red figures refer to Index Book with ten special books. Price, including book, $3.00 postpaid.'

The bill of complaint refers to the map only. The map has red numerical figures representing each piece or tract of ground. By referring to the corresponding figure in the Directory, the name of the owner or occupant is ascertained. The description of defendant's map need not be stated, because the stipulation recites:

'It being conceded by the appellant, if the notice of copyright is sufficient, the record contains evidence sufficient to support the finding and judgment of the court as to infringement.'

It was also stipulated that the outside cover of the book, and the title page, introduction, and contents of the book should be certified to this court--

'for the reason those portions of the exhibit above specified contain all matters in any wise affecting or pertaining to the question raised and to be considered on this appeal, to wit, the sufficiency of the notice contained on Exhibit A (which is the map).'

So that it is necessary to turn to the book (Map-Directory) in so far as it is in the record. On the title page is the following:

'Woodman's Minnetonka Map-Directory, 1908'

and the following:

'Woodman's Minnetonka Map-Directory, 1908.

Copyright 1908 by Prentiss M. Woodman.

Woodman Publishing Company, Lumber Exchange, Minneapolis, Minn.'

The requisite copies were timely deposited with the Librarian of Congress and on March 25, 1908, the copyright for 28 years was issued.

The holder of a copyright has no monopoly by virtue of the issued copyright itself, but his rights are measured by the statute, provided always he has complied with the statute. Thompson v. Hubbard, 131 U.S. 123, 9 Sup.Ct. 710, 33 L.Ed. 76; Merrell v. Tice, 104 U.S. 557, 26 L.Ed. 854; Wheaton v. Peters, 8 Pet. 591, 8 L.Ed.

1055. The statute of June 18, 1874 (18 Stat. 78, c. 301 [U.S. Comp. St. 1901, p. 3411]) provided that a publication should show on its face or title page:

''Entered according to Act of Congress, in the year . . ., by A.B., in the office of the Librarian of Congress, at Washington;' or, at his option the word 'Copyright' together with the year * * * and the name * * * thus-- 'Copyright, 18-- by A.B."

This was on the book at its appropriate place with greater definiteness than required by statute. And if we were dealing with the book or Directory alone, the case would not require argument to show that the statute had been complied with. And the subsequent statute, enacted after complainant had obtained his copyright, is of less specific requirements. See Act March 4, 1909, c. 320, 35 Stat. 1079 (U.S. Comp. St. Supp. 1911, p. 1472).

Turning to the map, and considering it alone, we find at one place on its face in large print:

'Woodman's Minnetonka Map-Directory. Copyright 1908. Drawn by J. C. Woodman.'

In another place the words:

'Published by Woodman Publishing Co., 841 Lumber Exchange, Minneapolis, Minn.'

In the light of the fact that the record shows Prentiss M. Woodman to have been the author of the copyright, and that J. C. Woodman was the draftsman of the map, and that they were father and son, of the same city and same business address, that of and by itself, the notice on the map is not sufficient. The cases of Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53, 4 Sup.Ct. 279, 28 L.Ed. 349, and Bolles v. Outing Company, by the Court of Appeals, Second Circuit, 77 F. 966, 23 C.C.A. 594, 46 L.R.A. 712, affirmed in 175 U.S. 262, 20 Sup.Ct. 94, 44 L.Ed. 156, although not passing on the point, have gone far in upholding the sufficiency of a notice. In the Sarony Case the initial of the given name was given. In the Bolles Case no initial of the first name was given, and the surname only was recited. But the subject-matter was a photograph, and there was no other photographer by that name in the city named. To uphold the map alone in the case at bar is to carry the defective notice further than either of the cases cited, and as believed further than any appellate court has yet gone. So that, if the map alone were being considered, it would follow that the notice is insufficient.

But we are of the opinion that in this case the book or Directory and the map are one production, and that the Directory includes the map. We fail to find a material difference whether the map is inclosed in the pocket to the Directory or whether it is stitched or otherwise fastened to the cover, or elsewhere in the Directory. On the map is the hyphenated...